National Brands Ltd v Blue Lion Manufacturing (Pty) Ltd (228/99) [2001] ZASCA 17; 2001 (3) SA 563 (SCA) (16 March 2001)

National Brands Ltd v Blue Lion Manufacturing (Pty) Ltd (228/99) [2001] ZASCA 17; 2001 (3) SA 563 (SCA) (16 March 2001)

The court found that the marks 'Romany Creams' and 'Romantic Dreams' are not likely to deceive or confuse consumers, either visually or phonetically. The differences in pronunciation, sense, and overall visual impression were sufficient to distinguish the marks. The court held that the resemblance highlighted by the appellant was not likely to be perceived in fair and normal use. Furthermore, section 34(1)(c) did not apply, as 'Romantic Dreams' was not an easily recognizable likeness of 'Romany Creams'. The appeal was dismissed, and the appellant was ordered to pay costs, including those for two counsel and the application to lead further evidence.

Citation
[2001] ZASCA 17
Parties
Appellant: National Brands Limited; Respondent: Blue Lion Manufacturing (Proprietary) Ltd
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
16 March 2001
Case Number
228/99
Procedural Posture
Civil Appeal / Appeal From Transvaal Provincial Division
Outcome
Appeal dismissed with costs, including costs of two counsel and costs of the application to lead further evidence.
Judges
Hefer, Harms, Zulman, Mpati, Nugent
Legal Topics
Trade Mark Infringement, Likelihood of Confusion, Visual and Phonetic Similarity, Section 34 Trade Marks Act
Intellectual Property Commercial and Corporate Trade Mark Infringement Likelihood of Confusion Visual and Phonetic Similarity Section 34 Trade Marks Act

Case Brief

Summary, issues, holding and outcome

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Parties

National Brands Limited

Appellant

Blue Lion Manufacturing (Proprietary) Ltd

Respondent

Procedural Posture

Civil Appeal / Appeal From Transvaal Provincial Division

Legal Issues

  1. 1 Whether the respondent's use of the marks 'Romantic Dreams' and 'Kwality Romantic Dreams' infringes the appellant's registered trade mark 'Romany Creams'.
  2. 2 Whether the marks are so similar as to be likely to deceive or cause confusion among consumers.
  3. 3 Whether section 34(1)(c) of the Trade Marks Act provides protection to the appellant in these circumstances.

Ratio Decidendi

The court found that the marks 'Romany Creams' and 'Romantic Dreams' are not likely to deceive or confuse consumers, either visually or phonetically. The differences in pronunciation, sense, and overall visual impression were sufficient to distinguish the marks. The court held that the resemblance highlighted by the appellant was not likely to be perceived in fair and normal use. Furthermore, section 34(1)(c) did not apply, as 'Romantic Dreams' was not an easily recognizable likeness of 'Romany Creams'. The appeal was dismissed, and the appellant was ordered to pay costs, including those for two counsel and the application to lead further evidence.

Court Disposition

Appeal dismissed with costs, including costs of two counsel and costs of the application to lead further evidence.

Orders

  • The appeal is dismissed with costs, including the costs occasioned by the employment of two counsel.
  • The costs of the application to lead further evidence are to be paid by the respondent.